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How Do I Prove Age Discrimination in the Workplace?

October 15th, 2021
prove age discrimination

Workplace age discrimination has been around as long as other types of discrimination, but it can be harder to prove because it is often more subtle. Besides that, older workers may be more hesitant to report what has happened to them because they do not realize that they are being discriminated against or fear repercussions. The Equal Employment Opportunity Commission (EEOC) claims that although close to 70 percent of these workers face workplace discrimination, only around three percent file formal complaints. Some fear facing further discrimination, harassment, or abuse as well as job termination. There are ways to prove age discrimination and win suits, but you will need some proof to be successful.

What Kind of Evidence Would I Need?

Direct evidence is best but is harder to obtain for obvious reasons; employers want to cover their backs. It is good to get into the habits of writing things down and saving emails and texts, saving voicemails, and saving company communications. If your supervisor asks you when you are planning on retiring or makes unwelcome comments about your age, make a note of it. All this information should be kept in a secure place that is not in your office.

Another kind of evidence could be wrongful discipline. If a manager disciplines you by docking your pay for coming in 30 minutes late to work but allows another worker to get away with this with no dock in pay, document this. Another area of age discrimination includes hiring, promotions, and firing. These days, employers often try to brand themselves as being more modern, and along with this goes a younger staff. This type of favoritism is against the law. Again, evidence that compares your treatment to another, younger employee’s treatment for the same circumstances is stronger. If you think there is age discrimination, try asking your boss for a performance evaluation and hold onto it afterwards.

You can also try to prove workplace harassment if offensive and derogatory comments and other communications are made about your age. This could be seen as a hostile work environment, or a way that the employer is facilitating adverse employment decisions such as demotions and firings. When recording any kind of proof, be sure to note the perpetrator’s name, date, time, and form of harassment experienced.  The perpetrator can be a co-worker, another employee, or anyone else that you encounter at work. Be sure to record all this information accurately and submit a report to your human resources department to make it official.

Thought to be the most subtle form of age-related workplace discrimination and possibly even harder to prove, exclusion is when employers do not include certain employees to company events such as conferences, lunches, training programs, and meetings. You may not even be aware of these events until after they happen but try to find out as much information about them as you can. Contact the person who organizes these events and ask to be included the next time; see what their response is and keep a copy.

What Legal Protection Do I Have Against Workplace Age Discrimination?

The Age Discrimination in Employment Act of 1967 (ADEA) protects employees ages 40 and up from workplace age discrimination who work for federal, state, and local governments, private employees with 20 or more employees, labor organizations, and employment agencies. Workers cannot be discriminated against because of their age regarding any term, privilege, or condition of employment. This specifically includes:

  • Hiring, firing, layoffs, and promotions.
  • Compensation and benefits.
  • Training and job assignments.
  • Age harassment is also prohibited.

Just as importantly, it is against the law to retaliate against employees who oppose these kind of employment practices; file age discrimination charges; testify; or aid with an investigation, proceeding, or litigation that is carried out through the ADEA. The ADEA’s protections extend to other areas as well. Employers are not permitted to include specifications such as age preferences or other limitations in their job advertisements and are not supposed to ask an applicant’s date of birth or age during pre-employment inquiries. It is also unlawful to discriminate based on age with apprenticeship programs.

There is also the Older Workers Benefit Protection Act of 1990 (OWBPA), which amended the ADEA that year. This was designed to prohibit companies from denying benefits to more mature employees. The cost for providing some health benefits to older workers is higher than for providing the same benefits to younger ones, and companies may use this as a factor in hiring.

Are There Different Kinds of Age Discrimination Cases?

Workplace age discrimination usually fall into one of two categories: disparate treatment or disparate impact. With disparate treatment, employers purposely target an employee and treat them less favorably, based on a characteristic that falls in the protected group such as age. This kind of age discrimination is usually more obvious because it is most always intentional. Claimants must prove that but for their age, the discrimination would not have happened.

What is disparate impact? This includes various kinds of unintentional discrimination. There could be a company policy or supervisor conduct that negatively and disproportionately impacts a protected group. An example of this could be if a company laid off a disproportionate number of employees over age 50 for so-called budget cutbacks. Another scenario could involve only hiring applicants who are recent college graduates. To prove this kind of age discrimination, the policy would have to be identified and investigated. These kinds of cases can be complicated, because there may very well be legitimate business reasons to lay off older workers if their salaries are substantially higher than younger employees and a layoff is the only viable option.

Have There Been Any Major Workplace Age Discrimination Cases?

There were 67,448 workplace discrimination charges filed with the EEOC in fiscal year (FY) 2020, which was seven percent less than FY 2019. This could be due in large part to the coronavirus pandemic, since many people were out of work or working remotely. In 2020, the EEC recovered $106 million through litigation for claimants. There have been many notable age discrimination cases over the years, including one initiated by an employee of a Hawaiian health care company, who was in her mid-50s when the complaint was made. According to her, the owner of the company allegedly ordered her manager to fire her because she looked and sounded old and was “like a bag of bones.” This case eventually settled for $193,236.

Another case was filed against a New York law firm that had hundreds of attorneys. They had a system in place that reduced compensation for their attorneys once they turned age 70, even though they were deemed just as productive as younger attorneys. The EEOC was also involved in this case, and they charged that the defendant also engaged in retaliation against one attorney who had been with the firm for more than 40 years; it was alleged that the firm further reduced his compensation after he spoke out. This case settled for even higher: $574,000.

An earlier Philadelphia case involved a martial arts instructor who was fired by his employer at age 74, after working for them for 26 years. The employer had instituted a new policy requiring that all workers aged 67 and over would be terminated. This employee had a good work history before the forced retirement and ended up getting $100,000 in monetary and injunctive relief.

Philadelphia Age Discrimination Lawyers at The Gold Law Firm P.C. Support Workers of All Ages and Will Fight to Protect Your Rights

Older workers should be treated with the respect they deserve, but many employers feel otherwise and practice age discrimination. If you believe that you are being discriminated against at work, contact the Philadelphia age discrimination lawyers at The Gold Law Firm P.C. We will file and pursue all appropriate claims, guide victims through the legal process, and work to recover all remedies and monetary compensation available under the law. Call us today at 215-569-1999 or contact us online for a free consultation. Located in Philadelphia, Pennsylvania, and Pennsauken, New Jersey, we serve clients in Wilkes-Barre, Scranton, northeast Philadelphia, Bucks County, Chester County, Delaware County, Montgomery County, and Cherry Hill, South Jersey.

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